German Constitutional Court sends sampling saga into another loop

Moses took it to the highest court
In 1997, German music producer Moses Pelham took a two second sample from Kraftwerk's 1977 song "Metall auf Metall" and used it as a continuous loop for the song "Nur mir" performed by Sabrina Setlur. In 2004, Kraftwerk sued Pelham for violation of their phonogram producers' rights and obtained an injunction against the distribution of "Nur mir". The case went all the way to the Federal Court of Justice (BGH), which held in 2008 that even sampling the "tiniest sliver" ("kleinste Tonfetzen") of a record infringed the record producer's right (§ 85(1) German Copyright Act). The defence of Article 24 Copyright Act (Freie Benutzung) was in principle applicable, but required that it was not possible to recreate the sampled sound without copying from the original recording. The BGH sent the case back to the lower court for the factual determination whether it was possible to recreate the sampled sound in the specific case.

Sabrina does not Settlur
The lower court found that it was indeed possible for the average music producer to recreate the same sound without sampling, and in 2012, the BGH dismissed another appeal by Pelham against that decision. It namely held that its interpretation of the law did not violate the constitutional freedom of art (Kunstfreiheit, Article 5(3) Grundgesetz).

Pelham took the case to the German Constitutional Court in Karlsruhe, and won. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it 
Lost its steam on appeal
was very time consuming and prohibitively complicated. The effect of the sampling on the commercial exploitation of the original song, on the other hand, was minimal. On balance, the Federal Court of Justice's interpretation of the law violated freedom of art. The case was sent back to the BGH for the BGH to find a way to take into account the sampling artists' protected freedom of art.

I think the Constitutional Court got it right. For already famous musicians with the necessary financial means, clearing all samples may be possible. For up and coming hip hop artists, requiring the phonogram producer's permission to use even "the tiniest sliver" of a published recording would mean the end of producing. Copyright should further the arts, not hinder it.
German Constitutional Court sends sampling saga into another loop German Constitutional Court sends sampling saga into another loop Reviewed by Mark Schweizer on Tuesday, May 31, 2016 Rating: 5


  1. I believe a core feature of the decision is the part dealing with EU law. The BGH did not take into consideration the InfoSoc Directive in its two decisions on the matter, despite the fact that the reproduction right of the phonogram producer is harmonized under Art. 2 of the Directive. In the oral proceedings, this has been heavily contested in expert testimony by Professor Leistner (speaking on behalf of the GRUR). Reading the decision, it seems clear to me that the BVerfG joined that criticism, in fact ending its decision with a two-page long blueprint to the BGH for giving proper consideration to EU law (decision in German here).

    (Roughly translated:) "Inasmuch as the case involves uses after Dec 22, 2002, the BGH [...] has to determine first to what extent Union law with primacy leaves room for application of German law. If existing provisions in European directive(s) prove exhaustive, the BGH is required to ensure effective protection of basic rights primarily by interpreting the provisions in the directive(s) in accordance with European basic rights and, if in doubt regarding the interpretation or validity of the InfoSoc Directive, to make a reference to the ECJ under Art. 267 TFEU." (Rec. 112) Such a reference (and the ensuing decision) would then be checked by the BVerfG (rec. 120). As part of such a check, the BVerfG would check in particular, among other things, if the ECJ's decision "meets the indispensable minimum standard of the German Basic Law," referring to its "identity control" procedure (rec. 124).

    So this could indeed be a rather long loop -- at any rate, I don't think the BGH will get around making a reference to the ECJ.

  2. The German Constitutional Court has today published an official English language press release which might help. It can be found here:

    On the point of a CJEU referral: there is an argument that Article 24 UrhG (German Copyright Act) is not part of harmonised law so that there is - again arguably - no need for a CJEU referral. Yes, I can see the conflict with the Copyright Directive and it's not an acte clair but there may not be a referral to the CJEU. I personally would like to see it referred.

  3. Thanks for the tip, Birgit. I feel so stupid now, because I was working off the German press release... English would have been so much easier. Fo shizzle...

  4. Don't, Mark :) I found it by accident only and am not sure it was even there first thing in the morning. It is much harder work to grasp too, your summary is a lot more succint and user friendly.

  5. According to the article, "The defence of Article 24 Copyright Act (Freie Benutzung) was in principle applicable, but required that it was not possible to recreate the sampled sound without copying from the original recording."

    Have I understood correctly that in order to claim the benefit of Freie Benutzung it must be impossible for the average musician to reproduce the sound without sampling?

    Thus, an entirely original sound that cannot be reproduced by the average musician may be sampled; but something that the average musician can reproduce may not be sampled?

    Does anyone know the history of why / how this exception came to be? It seems a bit strange to me.

    Thanks in advance.

  6. @ anonymous of Thursday, 2 June 2016 at 16:17:00 BST: The underlying idea is that if the sound can be recreated, it does not need to be copied, and therefore the copying is not justified in the interest of art. This may indeed result in more "original" sounds being permitted to be copied, versus generic sounds not being allowed to be copied. The BGH discussed whether basing the right to copy on the "originality" of the sound sample was the way to go and dismissed the approach (rightfully so, IMHO) because it would lead to difficulties distinguishing protected and unprotected snippets.


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